Taking a Broad View of Public Corruption

Alabama has been at the heart of recent debates about public corruption, largely because of the questionable prosecution of former Democratic Governor Don Siegelman.

But Alan Greenblatt, writing at Governing Magazine, says questions about public-corruption cases go well beyond Alabama.

Greenblatt says that since 2002 the number of public-corruption cases and the number of FBI agents devoted to such cases has increased by more than 50 percent. And he discusses high-profile investigations in Tennessee, New Jersey, North Carolina, and Alaska.

Alabama is far from the only place where indicted public officials accuse prosecutors of targeting them for political purposes, either to destroy an opponent from the other party or simply to advance their own careers. But such accusations have taken on greater currency following the dismissal of nine U.S. attorneys who were insufficiently loyal to an effort in Washington to politicize public corruption cases. That scandal led last August to the resignation of U.S. Attorney General Alberto Gonzales, along with most of the other top officials at the Justice Department. "It gives traction to the claims of partisan political motivation made by indicted officials," says former prosecutor Geoff Moulton, now a law professor at Widener University, "even in cases where there's absolutely no merit to those claims."

In some cases, however, there clearly is merit to those claims, particularly when a prosecutor is a publicity hound:

Public corruption cases may not be the most certain way for a prosecutor to advance his career — they create plenty of enemies even when, or especially when, they're successful — but they do guarantee bigger headlines than conducting drug seizures or even sending a series of murderers to death row. That sort of motivation was starkly on display in 2004, when e-mails leaked from the office of Thomas DiBiagio, then the U.S. attorney in Maryland. He demanded that his staff bring no fewer than three "front-page" corruption indictments by Election Day. Given the current climate, it's become the first line of a vigorous defense for public officials to suggest they are the latest victims of politically-motivated investigations.

Greenblatt spends a significant amount of time on the Siegelman case, with mixed results. From my perspective, Greenblatt makes a weak effort with this paragraph:

Siegelman has yet to prove the existence of a wide-ranging Republican conspiracy against him. He admits he has no hard proof and, indeed, the whole story rests entirely on the testimony of a lawyer who has changed her story more than once. Much has been made of the fact that a Rove crony is married to a U.S. attorney in Alabama, but far less attention has been given to another fact — that one of the lead prosecutors in Siegelman's case was a Democrat who had successfully prosecuted Alabama's former Republican governor, Guy Hunt.

This paragraph presents several problems. The whole story does not rest entirely on the testimony of a lawyer (Jill Simpson). And Simpson has not changed her story more than once. She simply has added details based on the questions she is asked and the venue in which they are asked. Also, the contention that a lead prosecutor was a Democrat who went after former Republican Governor Guy Hunt is irrelevant. The prosecutor (Steve Feaga?) still was answering to Leura Canary, a highly partisan figure, by any definition.

Greenblatt is more on target with the following paragraph:

But even absent proof of nationwide collusion, it does appear that the Siegelman prosecution, which dragged on for more than five years, took on a highly personal quality. The former governor was convicted of doing something that would sound to many people like part of his job description — he gave a seat on a state board to a campaign contributor. Siegelman's allies claim that the prosecution went so far as to criminalize normal political activity. Whatever the reality may be, Siegelman's conspiracy claims have taken on broad currency because they speak to the worst fears about centralized power and prosecutors using courts and pliant juries as political weapons.

The Governing piece addresses a key issue in any public-corruption case--the expansive nature of federal statutes:

Many of the federal laws used to convict state and local officials are so vague as to allow prosecutors enormous leeway. To secure a federal mail fraud conviction, the prosecutor merely has to convince a jury that the defendant deprived the public of its right to "honest services." No specific state or local crime needs to be alleged, and no precise definition of "honest services" needs to be provided. In 1987, the U.S. Supreme Court ruled that this was illegally broad. The following year, however, Congress restored it. Despite the Supreme Court's recent general sensitivity to federalism issues, the justices have shown no inclination in the past decade to curb federal prosecutors from hounding officials at lower levels of government. In a 2004 ruling, for example, the court unanimously upheld a statute that makes any bribery a federal crime within jurisdictions that receive federal money, even when no federal money or programs are involved. "Congress does not have to accept the risk of getting poor performance for its money, owing to local and state administrators' improbity," Justice David Souter wrote.

A key question Greenblatt does not address: In the Siegelman case, a public official apparently was prosecuted for political reasons? What about the flip side of that, cases where a public official, one who clearly was involved in wrongdoing, is not prosecuted for political reasons?

We've presented exactly such a case here at Legal Schnauzer, where a Bush appointee (Alice Martin) has allowed corrupt Republican judges to run amok in her jurisdiction. Along the way, Martin has failed to disclose her clear conflict of interest in the case, sent the case to an investigative agency that has no jurisdiction in the matter, and lied to the citizen who filed the complaint.

Martin used the U.S. mails and wires in this fraudulent scheme, which clearly fits under the definition of honest-services mail fraud. We here at Legal Schnauzer are holding Martin's feet to the fire on this issue, and she already is reportedly being investigated by at least three governmental entities on a variety of questionable practices.

Perhaps this is a side of the story that needs attention from Mr. Greenblatt and Governing Magazine.